P L D 1954 Lahore 341 (PLP)

SHABIR AHMAD, J.‑This appeal and Regular First Appeal No. 462 of 1945 are by the same person and as some of the material facts which require consideration in the two appeals are the same as are some questions of law that arise in the two appeals, they will be disposed of by this order. The dispute centres round a piece of land measuring 137 kanals 15 marlas which belonged to one Ghulam Rasul, son of Fazal Din, an arain of Lahore, who, by a document executed on the 21st of December 1921 and registered on the 3rd of January 1922, mortgaged it with possession to Mehr Waris, son of Mehr Murtaza, also an again of Lahore, for Rs. 15,

000. On the 26th of January 1925, Mehr Waris sold his mortgagee rights in the land to Ahmad Din, who also was an arain of Lahore, for Rs. 15,

000. On the 21st of December 1927, Ahmad Din brought a suit for recovery of Rs. 15,950, basing his claim on the mortgage deed executed by Ghulam Rasul on the 22nd of December 1921 and the deed of transfer executed by Mehr Waris on the 26th of January 1925. The suit was ultimately compromised on the terms that a final decree for sale of the mortgage property for Rs. 15,000. be passed in favour of Babu Ahmad Din against Ghulam Rasul. One of the terms of the compromise was that the decretal amount could be paid by the judgment‑debtor within six months. As a result of this compromise a decree embodying its terms was passed on the 10th of October 1928. Ghulam Rasul did not pay the decretal amount but when the property was sought to be sold in execution of the consent decree passed on the 10th of October 1928, objection was taken that as the land belonged to a member of an agricultural tribe it was because of the provisions of the Punjab Alienation of Land Act, 1900, immuned from sale in execution of a decree. This objection found favour with the original Court. An appeal was instituted in this Court by Ahmad Din which was dismissed, as reported in A I R 1934 Lah.

609. On the 1st of July 1939, Ghulam Rasul sold the land to three brothers, Muhammad Amin, Muhammad Hussain and Muhammad Ali sons of Allah Ditta, for a sum of Rs. 22,

000. On the 14th of August 1943. Muhammad Amin, Muhammad Husain and Muhammad Ali instituted an application under section 4 of the Redemption of Mortgages (Punjab) Act, II of 1913. Ahmad Din, who was impleaded as the respondent in the application before the Collector, raised some objections, the Revenue Officer, but on the 5th of February 1944, Mr. Ghulam Farid, Assistant Collector, 1st Grade. Lahore, on whom powers of the Collector, under the Redemption of Mortgage (Punjab) Act had been conferred, passed an order that the land be redeemed on payment of Rs. 15,98N‑8‑

0. It appears that some part of the land was vacant on the 5th of February 1944, and Mr. Ghulam Farid, therefore, directed that possession of the vacant land be delivered to Muhammad Amin, Muhammad Hussain and Muhammad Ali forthwith. With regard to that part of the laud which was under crop, Mr. Ghulam Farid ordered that its possession shall be given soon after compensation regarding the crop had been paid by Muhammad Amin and his two brothers. From the documents on the record it appears that possession of the land was delivered on the 29th of February 1.944 after the owners of land had deposited Rs. 5775‑15‑0 which had been fixed as the compesation for the crop that stood on parts of the land, under mortgage. Both parties were dissatisfied with the order passed by the Collector and each of them brought a civil suit under section 12 of the Redemption of Mortgages (Punjab) Act, II of 1913. Ahmad Din brought his suit on the 5th of February 1944 in which he sought a declaration that Muhammad Amin and his two brothers had no right to get tire land in suit redeemed and, in the alternative, for a declaration that they could redeem the land only on payment' of Rs. 38,000, and not Rs. 15,982‑8‑0 which was fixed by the Revenue Assistant. The suit was resisted and on the pleadings of the parties, the trial judge framed the following issues :‑ (1) Whether the defendants have no locus standi to redeem the property for reasons given in the plaint ? (2) What is the effect of the decree for sale, dated 10th December 1928, and the consequent non‑payment for over 12 years by Ghulam Rasul uptill now ? (3) Whether the plaintiff has spent any amount on the improvement and upkeep of the mortgaged property, if so, what amount and is he entitled to the same ? (4) Whether the plaintiff paid any amount by way of land revenue ? If so, what amount and is he entitled to it ? (5) Whether the plaintiff spent any amount on the construc tion of a haveli, if so what, and is he entitled to it ? (6) Whether the order of the Collector 1st Grade is illegal ? (7) Is‑the plaintiff not entitled to retain the property till he is paid his dues ? , (8) Cannot the defendants resist the plaintiffs suit in view of their alleged admission that the order dated 5th February 1944 is ultra vires ? (9) Relief. The suit of Ahmad Din was dismissed on the finding that Muhammad Amin and his two brothers could redeem the land on payment of Rs. 3,982‑8‑0 and the sum claimed by Abroad Din and that allowed by the Revenue Assistant were wrong. Against the dismissal of this suit, Ahmad Din presented Regular First Appeal No. 433 of 1945. The suit of Muhammad Amin and his two brothers consequent on the order of the Revenue Assistant dated the 5th of February 1944 was instituted on the 12th of April 1944, In this suit Muham mad Amin and his two brothers prayed for a declaration that the land under mortgage could be redeemed by them on payment of Rs. 3,982‑8‑0 only, that they were not liable to pay Rs. 5,775‑15‑0 as compensation for the standing crop to Ahmad Din, that they were entitled to get back from the Court of the Revenue Assistant a sum of Rs. 12,000 which Ahmad Din, according to them, was liable to pay for devastation by him of a garden of oranges and maltas which stood in a part of the mortgaged land and for recovery of Rs. 10,000 as damages from Ahmad Din, who, accord ing to them, has been unlawfully realising profits of the mortgaged land. This suit was resisted by Ahmad Din and on the pleadings of the parties the trial judge framed the following issues:‑ (1) Whether the plaintiff's have no locus standi to file the suit ? (2) Whether Ahmad Din devastated the garden if any, and to what extent and of what value ? (3) Whether the land was liable to be redeemed on payment of Re. 3,982‑8‑0 only ? (4) Whether the order of the Collector ordering compensa tion is ultra vires and illegal ? (5) Whether the Collector bad no jurisdiction to entertain the application for redemption ? (6) Whether the plaintiffs Muhammad Amin and others were entitled to possession without payment of compensation for standing crops ? (7) Whether defendant Ahmad Din is liable to restore the profits realised by him due to the possession of land after the decree, if so, to what extent ? (8) Whether the application for redemption to Collector, filed by the plaintiffs, was barred by principles of res judicata and what is its effect on the suit ? (9) Cannot the plaintiff's suit proceed in view of the alleged admission in paras Nos. 6 and 7 of the plaint ? (10) Whether the plaintiffs are estopped from bringing the present suit on account of their having , accepted and their having acted upon the orders of the Collector ? (11) Whether section 69 of the Partnership Act bars the plaintiff's suit ? (12) Relief. In this suit Mr. V. S. Vashisht. vv ho was in those days Sub‑Judge 1st Class, Lahore, and had heard the suit instituted by Ahmad Din, granted Muhammad Amin and his two brothers a declaration that the order of the Collector dated the 5th of February 1944 was wrong because Muhammad Amin and his two brothers were entitled to redeem the land on payment of Rs. 3,982‑8‑0 and not Rs. 15,982‑8‑0 fixed by the Collector. It was also declared that the order of the Revenue Assistant regarding ,compensation payable to Ahmad' Din for the standing crop was unjustified and unsustainable. A decree for Rs. 10,000 as damages for unlawfully retaining the produce of the land to which the plaintiffs were entitled was also passed in favour of Muhammad Amin and his two brothers. Against this decree, Ahmad Din presented Regular First Appeal No. 462 of 1945. Mr. Akhlaque Husain, who appeared for the respondents in both the appeals,' raised a preliminary objection that as the legal representatives of Muhammad Husain, one of the respondents in both the appeals, were not brought on the record within the time prescribed by law, both appeals had abated. It appears from the material on the record that Muhammad Husain died on the 4th of October 1947 and an application to implead his legal representatives was put in on the 22nd of December 1947. In this application a widow and five children of Muhammad Husain were mentioned to be his legal representatives. The application showed that the name of the widow of Muhammad Husain was Mst. Sardar Begum, names his three major daughters were Mst. Munawwar Begum, Mst. Walayat Begum and Mst. Muhammadi Begum, the name of a minor daughter was Mst. Bavi and the name of a minor son of his was Abdur Rahman. When the appeals came up for hearing on the 9th of January, 1951 the counsel for the respondents raised an objection that the appeals had abated because two daughters and a son of Muhammad Husain had not been impleaded, and that Muhammadi Begum, 141st. Bavi and Abdur Rahman who had been impleaded were not the children of Muhammad Husain. An affidavit put in by Nasir Din a nephew of Muhammad Husain, averred that the heirs left by his uncle Muhammad Husain were: (1) Mst. Sardar Begum alias Fazal Begum, widow, (2) Mst. Munawwar Begum, daughter, (3) lust. Walayat Begum, daughter; (4) Mst. Naseem Akhtar, daughter, (5) Mst. Zahida, aged about 10 years, daughter, and (6) Muhammad Ikram, aged about 17 years, son. It appears that Dr. Khalifa Shuja‑ud‑Din, who was representing the appellant, wanted some time to verify if the assertions in the affidavit of Naseer Din were correct, and the case was adjourned. On the 20tb of January 1951, an application was put in by Dr. Khalifa Shuja ud‑Din that one son and two daughters of Muhammad Husain be served according to the names given in the affidavit of Naseer Din put in on the 9th of January 1951. The affidavit which accompanied this application averred that members of the family of Muhammad Husain were generally known by two names and that the names mentioned in the application dated the 22nd of December 1947 were also the names of the children of Muhammad Husain. The contention of Mr. Akhlaque Husain was that as all the legal representatives of Muhammad Husain deceased had not been brought on the record within the time prescribed by law, abatement qua those who had not been impleaded in time must result and as two conflicting decrees could not be passed in the same case, the result must be that both the appeals must be held to have been totally abated. As to whether bringing on the record of only some of the legal representatives of a dead party is a sufficient compliance with the law or not, different views have been taken by different High Courts and even by the same High Court. For example, one finds that the view taken about this question by this Court in the case reported as Begum Jan v. Jannat Bibi (A I R 1927 Lah. 6.) and that reported as Muhammad Hassan v. Inayat Husain (A I R 1927 Lah. 94.) were opposed to each other. It is, however, not necessary to decide in this case whether or not on application impleading only some of the legal representatives of a deceased party is sufficient compliance with the provisions of law, because I have arrived at the conclusion that the assertion in the affidavit which accompanied the application put in by Dr. Khalifa Shuja-ud‑Din on the 20th of January 1951 was correct. The three legal representatives who, according to the affidavit put in by the respondents on the 9th of January 1951, bad not been impleaded within the period of limitation in my view, were known also by the names mentioned in the application put in on the 22nd of December 1947. All the legal representatives of Muhammad Husain were, therefore, on the record ever since the application dated the 22nd of December 1947 and no question of abatement on the ground urged by Mr. Akhlaque Husain arises. The main findings were given by the learned trial Judge in the suit which is the subject of Regular First Appeal No. 462 of 1945 and I. will, therefore, proceed to the consideration of that appeal before the other one. The learned counsel for the appellant urged that as the three brothers who were the plaintiffs in the suit were a firm which was not registered, the suit brought by them merited dismissal on that short ground, because of the provisions of. section 69 of the Partnership Act. No reliable evidence, however, was referred to during arguments to show that the sale on the 1st of July 1.939, which is evidenced by the document Exh. P. 1 on the record, was in favour of a firm. On the other hand, Exh. P. 1 shows clearly that the sale was in favour of the three brothers and not of a firm. It is possible, though it is not proved on the record, that the three brothers were members of a firm, but even if they were, this alone is no ground for holding that all the transactions that they entered into) jointly were on behalf of the firm. I would, therefore, repel this contention of the learned counsel for the appellant. The next contention, of the learned counsel for the appellant related to matters which were the subject of issues Nos. 1 and

5. He contended that in view of the consent decree passed on the 10th of October 1928 against Ghulam Rasool, the original mortgagor, no right to redeem the property survived and, there fore, the application for redemption made to the Collector could not have been made at all, nor could a suit be brought by the respondents to have it declared that the order passed by the Revenue Assistant on the 5th February 1944 was wrong in any particular. Reference was made in this connection to the terms of the decree, the important ones of which were that the mortgaged property would be put to sale but it was open to the mortgagee to pay the amount of the mortgage money within six months of the decree. The latter term, according to the contention, gave the mortgagor the option to redeem the property, and if he did not choose to do so within the time allowed by the consent decree, the right to redeem the property was extinguished for all times and the transferee of the original mortgagor who could not claim a better position than the mortgagor himself could not, after about fifteen years from the date of the consent decree, claim to redeem the property. In this connection the learned counsel for the appellant referred to a decision of the Madras High Court in Thirukona Ellarayyan v. Nakonda Nagaswami Ayyar (I L R 49 Mad. 691.), some observations in which lend support to his contention. The case dealt with by the Madras High Court arose out of a suit for foreclosure and it was held that the decision in that suit would act as res judicata in a subsequent suit to redeem the mortgaged property. The view expressed in this Madras case, however, was not taken in some other cases of that Court as is clear from the case reported in Nakondu Nagasami Iyer v. Thirukonda Ellaragan (A 1 R 1925 Mad. 1191). The Transfer of Property Act enacts that a right to redeem mortgaged property subsists till it is extinguished by act of the parties or by a decree of a Court. In Raghunath Singh and others v. Hansraj Kunwar and others (I L R 56 All. 561.) the Privy Council laid down that the right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose. Their Lordships were dealing with a case where the mortgagor had failed to redeem the property after a decree for redemption' had been passed in his favour and had subsequently brought a second suit for redemption. In view of the authoritative pronouncement mentioned above, it cannot be doubted that a second suit for redemption would lie even where the mortgagor had not redeemed the property after a decree fort redemption had been passed in his favour. The suit in which Ghulam Rasool had, on the 10th of October 1928, made a statement which resulted in a consent decree against him, was a suit for the sale of the mortgaged property for the realisation of the debt and would, in my opinion, make the position of the mortgagee weaker in so far as the right of the mortgagor to redeem the property was concerned. The difference for our present purposes, that I see between a suit by a mortgagee and one by a mortgagor is that in the latter the mortgagor comes to Court claiming to be prepared to pay the amount due on the mortgage while in the former class of suit this may not be the position of the mortgagor. If, therefore, in a case where the mortgagor himself had not cared to redeem the property in spite of a decree of redemption in his favour, the right of redemption is not extinguished, bow can it be taken away if a mortgagor did not redeem the property when a decree in a suit brought by the mortgagee gave him the option to do so. In order to show that the decision of their Lordships of the Privy Council in I L R 56 All. 561, was inapplicable to the present case, the learned counsel for the appellant argued that the Transfer of Property Act, the provisions of which their Lordships were interpreting, applied to the United Province of British India to which Province the case related, but has no application to the Province to which the present case relate. In so far as the contention that the Transfer of Property Act has no application to the present case goes, it is unexceptional, but that. however, does not mean that the decision of the Privy Council has no application to the present case. The general principles underlying most of the provisions of the Transfer of Property Act have been applied all along to cases arising in the Punjab of British India out of which the present Punjab was created, on the ground that those provisions were in consonance with justice, equity and good conscience. The only provisions of the Act which have not been applied are those which contain technical rules such as the requirements of registration etc. The question, therefore, that arises is whether section 60 of the Transfer of Property Act which deals with the right of redemption is such a technical provision of the Act as to be inapplicable to cases arising in this Province and I am of the view that it cannot be considered to contain just a technical rule. It is well‑settled that the right of redemption continues till the mortgaged property has been sold in execution of a decree for its sale. In the present case the sale could not take place because of the provisions of the Punjab Alienation of Land Act, XIII of 1900, but the fact remains that till the date of the petition of the respondents to the Collector the mortgaged property had not been sold. In spite of the consent decree providing that the mortgagor could pay the decretal amount within six months it was open to the mortgagor to pay the mortgage‑debt before a sale in execution of the decree was confirmed. I can see no real distinction, in this regard, between an ordinary case in which sale of mortgaged property has been ordered by a decree of a Court and the present one. In the former, the mortgagor could have avoided the sale of the mortgaged property by paying the money due before the sale was confirmed and I can think of no reason why the right of the redemption should be lost by reason of the fact that the sale of mortgaged property was not effected not because the decree‑holder did not want the property to be put to sale but because an enactment barred the sale. It is no doubt true that the consent decree had not been satisfied for about 15 years before the successors .in‑interest of the original mortgagor thought of applying to the Collector for redemption but the lapse of time relied upon did not take away the rights of vendee. The mortgage was entered into in the end of December 1921 and as Article 148 of the Limitation Act, fixes 60 years as the period) within which a suit for redemption of mortgaged property can be brought, it is clear that in August 1943, when the respondents applied to the revenue authorities for the redemption of the mortgage, a suit for redemption was not barred by time. In these circumstances, there was nothing to prevent the mortgagor to present an application to the revenue authorities for the redemption of the mortgage. It was next contended by the learned counsel for the appellant that the sum of Rs. 10,000 for mesne profits which has been granted to the respondents in the suit which is the subject of Regular First Appeal No. 462 of 1945 could not have been granted, nor could mesne profits have been claimed by the respondents in the suit which they instituted in the Civil Court consequent on the order of redemption passed by the revenue authorities. The argument was that as no mesne profits had been claimed by the respondents before the Collector, the fact that none were granted to them by that officer could not make them persons aggrieved by the order passed by the Revenue Officer at least in so far as the question of mesne profits went and the clam for the profits did not fall within section 12 of the Redemption of Mortgages (Punjab) Act, 1913. In reply the learned counsel for the respondents urged that the mere fact that his clients had not claimed mesne profits in their application to the Collector did not deprive them of their right to get the amount due on that score through the Civil Court. In this connection he referred to sections 4 to 11 of the Redemption of Mortgages (Punjab) Act, 1913, with a view to showing that the intention of the Legislature in enacting the Act was that mortgagors of agricultural lands should have a speedy remedy to have their mortgaged land redeemed without making it necessary for them to raise all questions which it may be necessary to raise if redemption were sought by a suit in a Civil Court. Section 4 is to the effect that the mortgagor or other person entitled to institute a suit for redemption may, at any time after the principal money becomes payable and before a suit for redemption is barred, present a petition praying that an order that the mortgage be redeemed be passed, and if the mortgage was with possession, he be put in possession of the mortgaged property. The section mentions the particulars which the petition should contain and the documents which are to accompany it, adding that the petition is to be verified as if it were a plaint presented in a Civil Court. It is further provided in the section that the petitioner is to deposit the amount which according to him is due on the mortgage. Section 5 enacts that when the petition under section 4 is duly presented and the deposit made, the Collector has to issue to the mortgagee summons to appear before him. Section 6 deals with the procedure when the mortgagor is absent but the mortgagee appears at the bearing. The section lays down, inter alia, that if the mortgagee admits the claim made by the mortgagor in his petition, the Collector is authorised to order redemption in spite of the absence of the mortgagor, but in other cases he is authorised to dismiss the petition. Section 7 prescribes the procedure which is to be followed when the person who presented the petition is present but the mortgagee does not appear. By this section the Collector is authorised to hold a summary inquiry as to whether the petitioner is entitled to redeem the mortgaged property, and whether the sum deposited is all that is due on that mortgage. If after the summary inquiry the Collector arrives at the conclusion that the petitioner is not entitled to redeem the property, he is authorised to dismiss the petition. Section 8 lays down the procedure to be followed when both the parties appear on the date on which the petition is set down for hearing. The Collector has to inquire from the mort gagee whether he is willing to accept the sum deposited by the petitioner in full discharge of the mortgage debt and in cases where the mortgage is with possession whether he is willing to surrender the possession of the mortgaged property. If the mortgagee replies to this question in the affirmative, the Collector can order the redemption of the property, and if it is a mortgage with possession, the delivery of the possession to the petitioner and can grant necessary consequential reliefs. But if the mortgagee while admitting the right of the petitioner to redeem the property claims a larger sum than that already in deposit and the petitioner is willing to pay the difference, the Collector has to fix a period not exceeding 30 days within which the petitioner must deposit the difference between the money already deposited by him and the money agreed to be paid. If the additional money is not deposited within the period fixed by the Collector, he has to dismiss the petition ; but if it is deposited within the period fixed by the Collector he has to make an order of redemption and of handing over the possession of the mortgaged property if the mortgage was with possession. The procedure laid down in sections 9 and 10 need not be considered because it has no relevancy to the facts of the present case. Section 11 deals with the same matter which is dealt with in section 8, with this difference that while section 8 applies to cases in which the mortgagor admits that a larger sum than that deposited by him is due, section 11 applies where after inquiry the Collector finds that the mortgage money due under the mortgage is more than the sum deposited by the mortgagor. Then follows section 1.2, the relevant part of which is in the following terms;‑‑ "Any party aggrieved by an order made under sections 6, 7. 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage, but, subject to the result of such suit, if any, the order shall be conclusive." After considering sections 4 to 11 I am of the view that there is nothing in them to disentitle the mortgagee to raise before the Collector all questions which may be raised if the proceedings were a suit for redemption brought in a Civil Court. It is not unlikely that the Redemption of Mortgages (Punjab) Act, 1913 was enacted to provide a speedy procedure for redemption of mortgaged agricultural land but there is nothing in the Act to show that all questions which can be gone into by a Civil Court in a suit for redemption could not be gone into by the Collector when acting under that Act. It is obvious that it would have been open to the mortgagee to claim mesne profits if suit for redemption had been instituted in a Civil Court, and I can see nothing either on principle or on the language of the relevant sections of the Redemption of Mortgages (Punjab) Act, 1913, which would prevent a mortgagee from claiming mesne profits when a petition for redemption is made under that Act. It having been open to the respondents to claim mesne profits before the Collector, the question arises if in view of their not having claimed that amount before the Collector, they were precluded from claiming it in the civil suit which they brought under section 12 of the Redemption of Mortgages (Punjab) Act, 1913. The language of section 12 makes it clear that the suit contemplated by it is one to set aside the order of the Collector on the ground that it is erroneous' and that it is not strictly a suit to enforce the mortgage but only a suit for righting an order incorrectly issued by the Collector. If this is the scope of the suit and the learned counsel for the respondents could not support by any authority his contention that it was not so‑it appears to me that the fact that the respondents had not claimed mesne profits in their petition before the Collector would preclude them from claiming that amount in the Civil Court. It is true that in the present case the respondents could approach the Civil Courts on the ground that the amount on which the redemption was ordered was incorrectly fixed by the Collector and should have been the one mentioned in their petition, but that does not mean that in the suit they could put forward any pleas which, though open to them before the Collector, were not taken before that officer. If, for example, the Collector had ordered redemption on the payment of Rs. 3,982‑8‑0, could the respondents have approached the Civil Court with a prayer that they should have been granted mesne profits. If such a plea were taken it is manifest that the reply would have been that having obtained the relief which they asked for they could not be deemed to be aggrieved by the order of the Collector within the meaning of section 12 of Redemption of Mortgages (Punjab) Act, 1913, and could not, therefore, claim mesne profits in the civil suit. The mere fact that in the present case the respondents were entitled to question the order of the Collector with regard to the amount on payment of which redemption was to take place, would not entitle them to claim mesne profits in the suit. If a relief was not claimed by the respondents before the Collector, the mere fact that it was not granted to them‑and it is obvious that it could not have been granted‑cannot make them persons aggrieved by the order of the Collector and entitled to seek that relief in the Civil Court in their suit under section 1:

2. Had the scope of a suit under section 12 not been limited in the manner I have indicated, it is possible that the claim of the plaintiff for mesne profits in the Civil Court may not have been barred ; but as the scope of the suit under section 12 is limited, I hold that neither on the wording of section 12 nor on any general principle of law .was it open to the respondent to claim mesne profits of the mortgaged property in the suit instituted by them. With regard to the claim of the respondents for the mesne profits, the learned counsel for the appellant pursued another line of argument also. He contended that as in spite of the fact that the consent decree was passed in the end of the year 1928 against Ghulam Rasul, the original mortgagor, no steps were taken for fifteen years to pay the amount which he bad agreed to pay, the order of grant of mesne profits would be unjust. The argument was that though the claim for mesne profits for the three preceding yeas may not be barred by limitation it would be barred by reason of the laches of the original mortgagor and his transferees. This argument of the learned counsel for the appellant which is based on a decision of their Lordships of the Privy Council in A I R 1950 P C 28 has a good deal of force, but as I have held that the mesne profits claimed by the respondents could not have been claimed because of the fact that claim for them was not made in the proceedings under the Redemption of Mortgages (Punjab) Act, 1913, I need not say anything more about it. While on the subject of a claim not being open to be put forward in a suit under section 12 of the Redemption of Mortgages (Punjab) Act, 1913, if it bad not been made before the Collector, I might deal with the argument of the learned counsel for the appellant that Rs. 5,775‑15 which had been allowed by the Collec tor as compensation for the crop that was standing on the land of which possession was taken by the respondents should have been taken into consideration by the Civil Court when considering what amount was due on the mortgage. With regard to this amount, one of the contentions of the learned counsel for the respondents was that as it had not been claimed by the appellant in the proceed ing before the Collector, it could not be claimed when the matter came before the Civil Court, On facts the contention of the learned counsel for the respondents is not correct, because though this sum was not specifically claimed by the appellant before the Collector, it had been pleaded in the reply which the appellant put in the Court of the Collector to the petition for redemption that a sum of Rs. 38,000 was due to him from the respondents and that it was only on payment of that sum that they could claim to redeem the property. The dispute about this compensation was the subject of issue No, 4 and with regard to it a very curious position arose. The respondents in para 7 of their plaint alleged that the order for the payment of compensation amounting to Rs. 5,775‑15‑3 was illegal, ultra vices and not warranted by law. In the written statement put in by the appellant it was said that the order allowing compensation was at the time when it was passed and in the circumstances not authorised by law, as the Revenue Officer had no jurisdiction to order redemption and the delivery of possession. As I read the written statement, it purports to say that the whole of the proceedings of the Collector were without jurisdiction, but it was not said that if the order of redemption passed by the Collector was with jurisdiction, no order for compensation for the standing crop could have been passed. That the crop was an accession to the mortgaged property within section 63 of the Transfer of Property Act was not denied by the learned counsel for the respondents but his argument was that compensation could not have been claimed. The learned trial judge held on issue No. 4 that even if the appellant was entitled to any compensation for the crop, the matter could be agitated by a separate suit and the compensation could not be claimed in the present suit. This to my mind was not the correct approach to the question. The Collector had ordered the payment of compensation for the standing crop and it was, therefore, for the respondents to have that order set aside in the suit brought by them under section

12. The order of the Collector dated the 5th of February 1944, (Exh. D. 5. in R F A 433 of 1945), dealt with the question of compensation in the last few lines in these words: "Possession of the vacant land shall be delivered at once and that of the land under crop should be delivered after payment of compensation on account of the tenancy rights." Actually the compensation payable was fixed at a later date but that, in my view, does not make it an order indepen dent of the order of redemption passed on the 5th of February 1944. If the matter of redemption had been brought before a Civil Court in the first instance, it is undeniable that the question of compen sation payable for accession to the mortgaged property could have been taken up by the mortgagee and the money due taken into con sideration when computing what amount was due on the mortgage. This is clear from the provisions of section 63 which enacts, inter alia that if accession to the mortgaged property has been acquired at the expense of the mortgagee and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take possession must pay to the mortgagee the expense of acquiring it. The crop that was standing on the land was capable of separate possession, and, therefore. I can see no reason why the respondents who wanted possession of the mortgaged property should not have been ordered to pay for the standing crop. It is not denied by the learned counsel for the respondents that the value of the standing crops was correctly fixed and he conceded that if compensation could be granted the amount awarded by the Collector was by no means too high. The scope of the proceedings under the Redemption of Mortgages (Punjab) Act, 1913, is, in my view, the same as of a civil suit for redemption, and, as compensation for the standing crop could have been granted in a civil suit, it could as well be granted by the Revenue Officer ordering redemption under the special Act applicable to the mortgages of land in the Punjab. It was next contended by the learned counsel for the appellant that as with the petition presented to the Collector under the Redemption of Mortgages (Punjab) Act, 1913, the respondents had deposited Rs. 15,982‑8‑0 as the money due on the mortgage on the date of their petition, they were precluded from questioning the order of the Collector which directed redemption on payment of Rs. 15,982‑8‑

0. In this contention, one has to refer to the application made to the Collector and the reply put in by the appellant. These documents were not placed on the record of the present case but the learned counsel for the parties agreed to their being treated as evidence in the case without formal proof. The file of the Revenue Office is in this Court along with the record of the suit and I find that in the application made by the respon dents to the Collector, it was mentioned that the money due under the mortgage was Rs. 3,982‑8‑0, but they were prepared to deposit any amount which they may be ordered to do. The Revenue Assistant ordered that a sum of Rs. 15,982‑8‑0 be deposited as mortgage money and it was in pursuance of this order that the respondents, in spite of the fact that according to them the mortgage money due was about Rs. 3,982‑8‑0 deposited Rs. 15,982‑8‑

0. In these circumstances the deposit made by the respondents could in no way preclude them from pleading afterwards that the sum actually due on the mortgage was less than money deposited by them. The next contention of the learned counsel for the appellant was that the sum of Rs. 12.000 granted to the respondents on the ground that the appellant had been responsible for the devastation of the malta garden which stood on a part of the mortgaged property was wrong. It appears from the mortgage deed copies of entries in the revenue papers placed on the record and the oral evidence of the parties that at the time when Ghulam Rasul mortgaged the property, about 20 kanals of the mortgaged land was under a malta garden. It is in evidence that at the time when the property was redeemed in 1944 no malta garden existed. The contention of the respondents was that the garden had been intentionally devastated in order to cause harm to them. On the other hand, the position taken up by the appellant was that trees in the garden died their natural death and he was, therefore, not responsible to pay the price of the trees to the respondents, because the fact that the trees did not exist at the time of redemp tion was due to not fault of his. The evidence with regard to the number of the malta trees in the orchard is, however, discre pant, because while Din Muhammad, who appeared as P. W. 14 to the suit brought by the respondents, said that the number of the malta plants was probably more than 1000 or 1500, Ahmad Din who appeared as P. W. 7 stated that the orchard contained 20 or 25 plants to a kanal, and if the evidence of P. W. 7 is accepted, the number of plants could not have been more than

500. As the malta orchard was mentioned even in the mortgage deed and there is no evidence that any such trees were planted by the original mortgagee or his successor‑in‑interest after taking possession under the mortgagee, the main question which requires considera tion is whether the malta plants died because of natural decay or because of the acts or neglect of the mortgagee. The evidence with regard to the usual age of a malta plant is not very uniform, but we have on the record leaflet 109 issued by the Department of Agriculture, Punjab, (Exh. D. W. 8/1), which contains general hints on the manuring of oranges. In this document it is mentioned that generally orange trees become unprofitable in the Punjab at the age of 10 or 15 years. In this connection the evidence of Chanan Ram, a retired Agricultural Assistant of Shahdara, who appeared as P. W. 19 in the suit brought by the respondents, cannot be overlooked. He stated that he could not by examining the soil of the mortgaged land say what the average life of fruit bearing plants in that land would be, adding that the average life of a fruit‑bearing orange tree was about 20 years. He mentioned further that the average fruit‑bearing life of citrus may be 50 or 60 years but had to admit that in this respect his information was based entirely on hearsay. I would, therefore, considering the entire material on the record and the evidence part of which has been detailed above, hold that the average fruit‑bearing life of a malta tree on the mortgaged land is between 20 or 25 years. The mortgage was entered into in the end of 1921 and as the malta trees existed then and bore fruit it may be presumed that they were planted a few years earlier than the mortgage. By 1944 some plants must have been over 25 years of age while others would be about 25 years, and, therefore, it :s obvious that by about the time the respondents thought of redeeming the mortgage, the trees had run out their utility as fruit‑giving trees. In these circumstances, the appellant cannot be blamed if he rooted out the trees so that he may use the mortgaged property, which, in view of the fact that it bad not been redeemed for about a decade after the consent decree against Ghulam Rasul, the original mortgagee, be could not have expected to be redeemed in the near future. The appellant cannot be held to have mischievously devastated the garden but that does not lead to the inference that he will not be responsible to pay for the uprooted trees compensa tion to the respondents. Chanan Ram (P. W. 19) stated that a fairly healthy plant at the age between 25 and 30 years could fetch a price of rupees one hundred. Taking the number of trees to be the one mentioned by Ahmad Din (P. W. 7) and taking the price of the plants at the lower figure mentioned by Chanan Ram (P. W'. 19), I would hold that the respondents were entitled to get a sum between five and six thousand rupees for the citrus plants which did not at the time of redemption exist on the mortgaged land. It is in view of the unsatisfactory state of evidence not easy to arrive at the correct figure to which the respondents are entitled under this head, but, in my opinion, this amount should neither be less nor more than Rs. 5,775‑15‑3 which the appellant has been held entitled to get as compensation for the crop which stood on the mortgaged land at the time when the respondents took possession of it. No other point was raised in Regular First Appeal No. 462 of 1945 and I will now address myself to Regular First Appeal No. 433 of 1945. The points of jurisdiction of the Collector and of the trial judge raised in the suit, which is the subject of this appeal are common with those dealt with in Regular First Appeal No 462 of 1945 and have already been disposed of. The only other point raised in this appeal was that the money spent by the appellant to pay the land revenue and to effect some repairs to the mortgaged property should have been granted to him. The learned trial judge did not consider the evidence with regard to these expenditures because he was of the view that the appellant was not entitled to any of these amounts. It would appear that the appellant had spent some amount for the repair of the mortgaged property including the haveli which was on a part of it; but the evidence produced by him does not prove satisfactorily what the expenditure incurred was. However, the main hurdles in the way of the appellant's attempt to get these amounts are: firstly, that he kept no accounts mentioned in clause (g) of section 76 of the Transfer of Property Act; and, secondly, that he did not, before expending money for repairs etc., notify to the mortgagor that expenditure was necessary. The proviso to clause (b) of section 72 of the Transfer of Property Act is to the effect that unless the mortgagor had been called upon and had failed to take proper and timely steps to preserve the mortgaged property from destruction the expenditure of the money by the mortgagee shall not be deemed to be a necessary expenditure. There is not even an allegation that the appellant before spending the money for repair had notified to the mortgagor or his successor‑in‑interest that expendi ture of some money was necessary in order to keep the property in proper repair and preservation of his security. The provision of section 72 of the Transfer of Property Act contain principles based on justice, equity and good conscience because if the mortgagee were to be allowed to expend all money on the mortgaged property that he liked, cases may arise that the mortgagee spends so much money on the mortgaged property that the mortgagor may find it not only difficult but almost impossible to redeem the property, though, if the only debt due were the money for which the mortgage was effected and interest thereon, the mortgagor may have had been in a position to redeem the mortgage. It is no doubt true that Ghulam Rasul, the original mortgagor, did not pay the mortgage debt for years after the consent decree was passed against him in October 1928, but as the right to redeem the property subsisted the duty of the appellant to notify to the mortgagor or his successor‑in‑interest that it was necessary to spend some money to preserve the mortgaged property from destruction continued and if the mortgagee or his successor‑in‑interest spent any money without notifying the mortgagor or his successor‑in‑interest, they did so at their own risk. With regard to the payment of the land revenue the position that emerges is that though the appellant or his predecessor-in‑interest may have paid the amount to Government, but as no accounts of the mortgaged property have been produced by the appellant, it cannot be said that the land revenue had not been paid out of the income of the property after deducting the interest due on the mortgage money. No other point was urged in Regular First Appeal No. 433 of 1945, and, as that raised by the learned counsel for the appellant has no substance, I would dismiss this appeal. Regular First Appeal No. 462 of 1945 is, however, partly accepted and for the reasons which have been detailed above, I would order that the respondents shall be entitled to redeem the property on payment of Rs. 15,982‑8‑

0. As neither of the parties has had complete success in the case, I would leave them to bear their own costs of both the Courts in both the cases. ABDUL AZIZ KHAN, J.‑I agree. A. H. Order accordingly.